Gagging Orders

Rhys Matthews made this Freedom of Information request to Neath Port Talbot County Borough Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was successful.

Dear Neath Port Talbot Council,

Please could you disclose the number of staff exits which have included the use of gagging orders otherwise technically known as compromise or settlement agreements during the last 10 years.

Please could you provide a breakdown of the numbers and costs of such agreements per year.

If possible please could you indicate how many agreements in each year involved a member of staff exiting the organisation whose role involved working with children or other vulnerable groups.

Yours faithfully,

Rhys Matthews

I confirm receipt of your Freedom of Information request received today, which has been forwarded to the relevant directorate for their attention.
 
FOI Team

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Graham Jones,

Dear Mr Matthews,

 

My Council has used several thousand settlement agreements, or similar,
over the last ten years.

 

Most if not all of these agreements included confidentiality clauses,
primarily to maintain confidentiality about the terms of the financial
settlements made to each individual recipient.

 

The main reason we have used these agreements, similar to most if not all
other local authorities in Wales, is to settle actual or potential equal
pay claims. The settlement agreements were used to ensure that the sums
paid were in “full and final settlement”. This is standard HR practice to
protect public money and has nothing at all to do with what you have
termed as “gagging orders”. A significant number of the recipients of
these payments were Community Care Assistants and, therefore, were
involved with vulnerable groups, but the settlement agreements did not
seek to prevent any such employees expressing any concerns which they may
have had about any service-related issues affecting a service users’
well-being.

 

A smaller but still significant group of employees have been subject to
settlement agreements as part of our workforce downsizing exercise. Again,
this is standard HR practice, albeit the aim of the settlement agreements
was mainly to drive down the costs to the Council of leavers, rather than
to inflate the payments made, with the agreements being used to ensure,
again, that public money was protected to the greatest extent possible.

 

There have been a small number of other occasions when individual
employees have been subject to settlement agreements for other reasons.
Again, the terms of the agreements were primarily financial-related with
there being no intention to prevent any employees from expressing any
concerns which they may have had about service users.

 

In these circumstances, it would be very costly for the Council to seek to
analyse and provide the specific data which you have requested. However, I
hope that the information which has been provided above addresses your
enquiry in a different way.

 

Kind regards,

 

Graham Jones

Head of Human Resources

Neath Port Talbot Council

[1][email address]

 

From: Ali Forbes
Sent: 02 September 2013 14:11
To: Graham Jones
Subject: Freedom of Information Act - Action Request

 

GRAHAM JONES, you have been allocated by ALISON FORBES the following FOI
Request:-

Sender: Rhys Matthews (ID:1264)

Sender Email: [2][FOI #174071 email]

Subject: Gagging Orders

Content: Please could you disclose the number of staff exits which have
included the use of gagging orders otherwise technically known as
compromise or settlement agreements during the last 10 years. Please could
you provide a breakdown of the numbers and costs of such agreements per
year. If possible please could you indicate how many agreements in each
year involved a member of staff exiting the organisation whose role
involved working with children or other vulnerable groups. Yours
faithfully, Rhys Matthews

Date Received: 21/08/2013

************************************************************

 

 

 

 

 

 

 

 

If you are dissatisfied with this response to your request for
information, you may appeal in writing setting out the reasons why you
think the decision is wrong, to the Council’s Monitoring Officer at the
following address:

 

Head of Legal Services & Monitoring Officer,

Neath Port Talbot CBC,

Civic Centre

Port Talbot

SA13 1PJ

 

If you decide to appeal to the Council’s Monitoring Officer, and are
subsequently dissatisfied with his response, you are entitled to appeal
directly to the Information Commissioner, whose address is:

 

Wycliffe House

Water Lane

Wilmslow

SK9 4AF

Website: www.ico.gov.uk

 

References

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2. mailto:[FOI #174071 email]

Dear Graham Jones,

Thank you for your response. I am not seeking information in respect of equal pay settlements and I apologise for not having clarified this in my initial request.

However, I am still seeking specific data relating to compromise or settlement agreements where employees have ceased to be employed by the organisation and have received a financial settlement as part of the agreement. These individuals would be expected to maintain confidentiality about the conditions of their agreement and would waive their rights to pursue litigation against the employer.

I would be grateful if you could provide this data in accordance with the FOI timescales.

Yours sincerely,

Rhys Matthews

Graham Jones,

I am away from the office for most of Thursday / Friday 5th and 6th
September but I will be accessing my emails from time to time and will
reply to urgent matters, as necessary. Kind regards, Graham Jones, Head of
Human Resources/Lead Officer for Resilience & Emergency Planning

Dear Graham Jones,

Please advise on the current status of this request.

Yours sincerely,

Rhys Matthews

Graham Jones,

I am out of the office - Thursday 3rd October -  but I will be accessing
my emails from time to time and will reply to urgent matters, as
necessary. Kind regards, Graham Jones, Head of Human Resources/Lead
Officer for Resilience & Emergency Planning

Dear Foi Team,

Please advise on the current status of this request.

Yours sincerely,

Rhys Matthews

Dear Mr. Matthews,
I have looked into your request below, this response has already been sent to you on 5th September, 2013. Please see copy below.
Thanks
FOI Team

From:Graham Jones
Sent: 05 September 2013 11:19
To: [FOI #174071 email]
Cc: Foi Team
Subject: FOI - Gagging Orders

Dear Mr Matthews,

My Council has used several thousand settlement agreements, or similar, over the last ten years.

Most if not all of these agreements included confidentiality clauses, primarily to maintain confidentiality about the terms of the financial settlements made to each individual recipient.

The main reason we have used these agreements, similar to most if not all other local authorities in Wales, is to settle actual or potential equal pay claims. The settlement agreements were used to ensure that the sums paid were in “full and final settlement”. This is standard HR practice to protect public money and has nothing at all to do with what you have termed as “gagging orders”. A significant number of the recipients of these payments were Community Care Assistants and, therefore, were involved with vulnerable groups, but the settlement agreements did not seek to prevent any such employees expressing any concerns which they may have had about any service-related issues affecting a service users’ well-being.

A smaller but still significant group of employees have been subject to settlement agreements as part of our workforce downsizing exercise. Again, this is standard HR practice, albeit the aim of the settlement agreements was mainly to drive down the costs to the Council of leavers, rather than to inflate the payments made, with the agreements being used to ensure, again, that public money was protected to the greatest extent possible.

There have been a small number of other occasions when individual employees have been subject to settlement agreements for other reasons. Again, the terms of the agreements were primarily financial-related with there being no intention to prevent any employees from expressing any concerns which they may have had about service users.

In these circumstances, it would be very costly for the Council to seek to analyse and provide the specific data which you have requested. However, I hope that the information which has been provided above addresses your enquiry in a different way.

Kind regards,

Graham Jones
Head of Human Resources
Neath Port Talbot Council
[email address]

show quoted sections

Dear Foi Team,

Please find my response to Mr. Jones below which was sent on the same day. You will see that I still require certain information which I clarified with him and remains outstanding.

'Dear Graham Jones,

Thank you for your response. I am not seeking information in
respect of equal pay settlements and I apologise for not having
clarified this in my initial request.

However, I am still seeking specific data relating to compromise or
settlement agreements where employees have ceased to be employed by the organisation and have received a financial settlement as part of the agreement. These individuals would be expected to maintain confidentiality about the conditions of their agreement and would waive their rights to pursue litigation against the employer.

I would be grateful if you could provide this data in accordance
with the FOI timescales.'

Yours sincerely,

Rhys Matthews

Mr. Matthews,
Apologies, I was not aware of your further request email, I will forward this onto Mr. Jones today.
Thank You
FOI Team

show quoted sections

Dear Foi Team,

Please advise on the current status of my FOI request as a response is now significantly overdue.

Yours sincerely,

Rhys Matthews

Dear Mr. Matthews,
Once again I apologise for the delay in this response, however the matter is being dealt with by the Human Resources Manager Mr. Graham Jones who should respond to you directly. I will today forward your further request.
Thank you
FOI Team

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Dear Neath Port Talbot Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Neath Port Talbot Council's handling of my FOI request 'Gagging Orders'.

The Council has failed to meet the legislative timescale for a response to my FOI enquiry and I would like an internal review of this matter prior to raising it with the ICO.

A full history of my FOI request and all correspondence is available on the Internet at this address:

https://www.whatdotheyknow.com/request/g...

Yours faithfully,

Rhys Matthews

David Michael,

Dear Mr. Matthews,

 

I have looked through the string of correspondence on the website.  I note
that you did in fact receive a response from Mr. Graham Jones but then a
question appears to have arisen about the nature of the information you
wished to receive.

 

I think it is clear from your request that you are only asking for
information in relation to members of staff who have left the Authority
rather than staff who remain here.

 

I think it is the use of the term “Gagging Order” that is causing the
difficulty here.  Not all settlements will be in the form of an Agreement
and, whilst confidentiality clauses are common in such settlements, they
may not be included in every one.  Could you confirm to me whether you
only want statistics relating to settlements where there is a
confidentiality clause or do you want information on all settlements.   

 

I look forward to hearing from you.

 

David Michael – Head of Legal Services

Neath Port Talbot County Borough Council

Civic Centre

Port Talbot

SA13 1PJ

01639 763368

[1][email address]

 

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Mae'r e-bost hwn ac unrhyw ffeiliau a drosglwyddir gydag ef yn gyfrinachol
ac at ddefnydd yr unigolyn neu'r corff y cyfeiriwyd hwy atynt yn unig. Os
ydych wedi derbyn yr e-bost hwn mewn camgymeriad, dylech hysbysu'r person
a anfonodd yr e-bost ar unwaith. Hefyd, sylwer nad oes unrhyw sicrwydd nad
yw'r e-bost hwn neu unrhyw ymgysylltiad yn rhydd o firws ac nad yw chwaith
wedi'i ryng-gipio na'i newid.

 

 

 

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Dear David Michael,

Thank you for your e-mail. I am seeking information regarding compromise/settlement agreements where a confidentiality term is present.

Yours sincerely,

Rhys Matthews

David Michael,

Dear Mr Matthews,

Thank you for your clarification.

I will look at the request in that context.

David Michael – Head of Legal Services
Neath Port Talbot County Borough Council Civic Centre Port Talbot
SA13 1PJ
01639 763368
[email address]

Please do not print this e-mail unless absolutely necessary - SAVE PAPER This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error, please notify the sender immediately. Please note also that there is no guarantee that this email or any attachment is virus free or has not been intercepted or amended.

Mae'r e-bost hwn ac unrhyw ffeiliau a drosglwyddir gydag ef yn gyfrinachol ac at ddefnydd yr unigolyn neu'r corff y cyfeiriwyd hwy atynt yn unig. Os ydych wedi derbyn yr e-bost hwn mewn camgymeriad, dylech hysbysu'r person a anfonodd yr e-bost ar unwaith. Hefyd, sylwer nad oes unrhyw sicrwydd nad yw'r e-bost hwn neu unrhyw ymgysylltiad yn rhydd o firws ac nad yw chwaith wedi'i ryng-gipio na'i newid.

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Dear David Michael,

Please advise on the status of my request for internal review.

Yours sincerely,

Rhys Matthews

David Michael,

Dear Mr. Matthews,

I anticipate that I will get a reply out to you by close of business on Thursday.

David Michael – Head of Legal Services
Neath Port Talbot County Borough Council Civic Centre Port Talbot
SA13 1PJ
01639 763368
[email address]

Please do not print this e-mail unless absolutely necessary - SAVE PAPER This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error, please notify the sender immediately. Please note also that there is no guarantee that this email or any attachment is virus free or has not been intercepted or amended.

Mae'r e-bost hwn ac unrhyw ffeiliau a drosglwyddir gydag ef yn gyfrinachol ac at ddefnydd yr unigolyn neu'r corff y cyfeiriwyd hwy atynt yn unig. Os ydych wedi derbyn yr e-bost hwn mewn camgymeriad, dylech hysbysu'r person a anfonodd yr e-bost ar unwaith. Hefyd, sylwer nad oes unrhyw sicrwydd nad yw'r e-bost hwn neu unrhyw ymgysylltiad yn rhydd o firws ac nad yw chwaith wedi'i ryng-gipio na'i newid.

show quoted sections

David Michael,

Dear Mr Matthews,

 

Further to our correspondence on this matter, I have now had an
opportunity to review the original decision taken by the Authority's Head
of Human Resources and come to a decision.  The response by the Head of
Human Resources was based on the difficulty which he anticipated in
finding the relevant information.  However, I have found that the Legal
Services filing system has allowed me to extract the information more
easily without the hours spent searching anticipated by the Head of Human
Resources.

 

I have decided that in the interests of openness and transparency the
Authority should release aggregate information to you; however it is not
required by virtue of specific exemptions under the Freedom of Information
Act 2000 [ hereafter referrred to as "FOI Act"] to comply fully with your
request for individual settlements for the reasons which are set out below
in this response ..  

 

Accordingly, I would inform you that in the last 5 years the breakdown of
"settlement agreements" (excluding Equal Pay or as part of ER/VR departure
- which you have previously confirmed to me you are not interested in) is
as follows:

 

2009 - 4 settlements

 

2010 - 3 settlements

 

2011 - 2 settlements

 

2012 - 4 settlements

 

2013 - 7 settlements

 

I would also inform you that the total "settlement sum" over the above 5
years was £ 316,829.  As confirmed in the response of the Head of Human
Resources dated the 5th September 2013 the confidentiality clauses do not
prevent any employees from expressing any concerns which they may have had
about the treatment of/dealings by the Authority with service users. 

 

I would inform you that all of the above 20 agreements contained
contractual confidentiality clauses on the part of both the Authority (as
the employer) and the individual employees concerned relating to amongst
other things the amount of the settlement sum in each instance. 
Accordingly, any further breakdown of the figures could in my opinion lead
to the identification of those individuals and the amount that each of
them received under their respective settlement agreement contrary to the
contractual obligations imposed on the Authority under the terms of those
agreements.

 

My reason for coming to that opinion is that inevitably the identity of
departing members of staff who have settled with the Authority on
termination of their employment will be known to quite a number of their
colleagues (especially within the department in which they were employed).
If we were to break the total settlement figures down into individual
settlement figures for each agreement in each year it would be quite
feasible for their former colleagues to work out who had received what sum
as a settlement. Likewise if we were to release yearly totals, it is the
case that in some years there were only a few settlements [ e.g. 2010 and
2011] and former colleagues whilst not being able to ascertain the exact
amounts paid to each ex-employee in those years would however by virtue of
other knowledge in their possession be able to ascertain the scale of
payments which each of those employees received: e.g. if for instance the
total figure for 2011 were £100k it could quite easily be deduced as a
matter of logic that at least one of those employees received more than
£50k .

 

It is our view that the amounts of settlement that these individuals
received is their "personal data" as defined in the Data Protection Act
1998 (i.e. the "DPA"). As such the Authority is subject to the "fair and
lawful"processing principle set out in the first Data Protection Principle
of the DPA which requires us as a Data Processor not to disclose personal
data unless it is both fair and lawful to do so. We consider that to
breach the lawful contractual confidentiality clauses contained in the
settlement agreements to the detriment of the former employees and without
their consent would be "unlawful" and accordingly would be a breach of the
First Data Protection Principle. Furthermore , it would also be "unfair"
in that it would be counter to their expectation of privacy bearing in
mind that they have entered into a legally binding agreement to keep such
personal information private and be a breach of the First Data Protection
Principle on that basis also.

 

Accordingly, I would inform you that I am not prepared in this instance to
provide you with a further breakdown of the settlement payments (other
than that which has been provided) as to do so would result in us breaking
the First Data Protection Principle set out in the DPA. In this respect
please be advised that we are specifically relying upon the exemption to
disclosure provided to public authorities under Section 40(2) of the FOI
Act.

 

I would again emphasise that these are not gagging orders.  Members of
staff may raise concerns about working methods etc. through management
structures and, in the final analysis through “whistle blowing”
procedures.

 

I would advise you that if you are dissatisfied with this response you are
entitled to submit a complaint tothe Information Commissioner's Office who
will review the Authority's decision to refuse to disclose further
information in response to your request.

 

The ICO's contact details are as follows:

 

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF 

 

 

David Michael – Head of Legal Services

Neath Port Talbot County Borough Council

Civic Centre

Port Talbot

SA13 1PJ

01639 763368

[1][email address]

 

Please do not print this e-mail unless absolutely necessary - SAVE PAPER

This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this email in error, please notify the sender
immediately. Please note also that there is no guarantee that this email
or any attachment is virus free or has not been intercepted or amended.

 

Mae'r e-bost hwn ac unrhyw ffeiliau a drosglwyddir gydag ef yn gyfrinachol
ac at ddefnydd yr unigolyn neu'r corff y cyfeiriwyd hwy atynt yn unig. Os
ydych wedi derbyn yr e-bost hwn mewn camgymeriad, dylech hysbysu'r person
a anfonodd yr e-bost ar unwaith. Hefyd, sylwer nad oes unrhyw sicrwydd nad
yw'r e-bost hwn neu unrhyw ymgysylltiad yn rhydd o firws ac nad yw chwaith
wedi'i ryng-gipio na'i newid.

 

 

 

#pdmma^88839897.42381^63#

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